1. C RIMINALIZATION OF C ARTELS Andreas Richter Bundeskartellamt Brno, 11 November 2008 The following presentation merely expresses the speakers own thoughts on the subject and should not be understood as reflecting the views of the Bundeskartellamt.

2. Criminalization of Cartels Andreas Richter Brno, 11. November 2008 Overview I.Administrative and criminal offences II.Competition law infringements as administrative offences III.Bid rigging

3. Criminalization of Cartels Andreas Richter Brno, 11. November 2008 Administrative Offences Act / Criminal Code Purpose of prosecution Purpose of prosecution I. Administrative and criminal offences - deterrence - repression - absorption of financial benefit

4. Criminalization of Cartels Andreas Richter Brno, 11. November 2008 I. Administrative and criminal offences Administrative Offences Act - fines Criminal Code - imprisonment - obligations and conditions - fines Legal consequences

5. Criminalization of Cartels Andreas Richter Brno, 11. November 2008 Procedural aspects Administrative offenceCriminal offence Prosecuting authority: - Administrative authorities Governing principles: - Principle of non-mandatory prosecution Effects on Leniency: - Leniency programme of the Bundeskartellamt (since 2000) - Public prosecutor - Principle of mandatory prosecution - Leniency is a rare exception (by law: „Kronzeugenregelung“) I. Administrative and criminal offences

6. Criminalization of Cartels Andreas Richter Brno, 11. November 2008 Administrative offence Violations of minor importance Classification of cartels Criminal offence Violations of core moral standards (i.e. murder) Intermediate cases I. Administrative and criminal offences

7. Criminalization of Cartels Andreas Richter Brno, 11. November 2008 II. Competition law infringements as administrative offences 1958: Introduction of the ARC -No strong feelings about violation of moral standards -Need to sanction companies 1968: „Wave of decriminalization“ (i.e. street offences) 1997: Criminalization of bid rigging History

8. Criminalization of Cartels Andreas Richter Brno, 11. November 2008 III. Bid rigging (Sec. 298 CC) Differentiated procedures > - Competition authority - Decision imposing a fine (or closing of file) Competent Court of appeal: - Cartel division of higher regional court > Prosecuting authority: - Public prosecutor Outcome of prosecution: - Public charges (or closing of file) Competent court: - Criminal division of local or regional court Administrative offence Criminal offence

9. Criminalization of Cartels Andreas Richter Brno, 11. November 2008 III. Bid rigging (Sec. 298 CC) A close cooperation between competition authority and public prosecutor is necessary, i.e. -Exchange of information -Coordination of searches and other formal steps Practical procedural issues

10. Criminalization of Cartels Andreas Richter Brno, 11. November 2008 V. Summary Criminalization of cartels in Germany - procedural disadvantages - still no social consensus

11. Thank you for your attention !!!